The request for determination of prevailing wage on Form 9141 is
usually the first step in the PERM process. The PERM Rule
permits, however, the commencement of recruitment before or after
filing and receiving a prevailing wage determination from the
Department of Labor (DOL). Each method has itswn advantages and
disadvantages. In either case, there is a maximum of 180 days to
begin and complete recruitment before filing the PERM
If the employer begins recruitment first, the PERM application
must be filed before the end of the prevailing wage validity
period. If the employer requests the prevailing wage first, the
PERM application must be begun before the prevailing wage period
A request for wage determination before recruitment provides the
certainty of a pre-approved wage level and occupational code
designation before recruitment commences, thus eliminating
potential errors in advertising the wrong job and wages.
Conversely, if recruitment begins first, the entire PERM
application may be expedited without waiting many months for the
issuance of a prevailing wage, but the employer cannot be sure that
the wage offer and occupational code are correct.
Although there is a high level of dissatisfaction with DOL
determinations, wage calculations are a daunting task for the DOL
which has reduced all possible occupations into about one thousand
generic SOC codes (Specific Occupational Codes). Moreover, the
Bureau of Labor Statistics has to provide constantly changing to
the Prevailing Wage Unit to determine wages for specific job offers
based on employers' job descriptions and requirements.
Combinations of job duties, supervision, travel requirements,
special skills and languages, years of experience, education and
training, work force hierarchy, and level of responsibility are
common factors which must be applied to determine the most
appropriate wage for each job.
There are currently four wage for each job, varying from entry
level to fully independent positions. The language used to describe
these levels is very generalized and can lead reasonable persons to
reach different, rather subjective conclusions.
Although the DOL provides wage determinations based on official
statistics, employers are free to provide their own wage level
surveys – whether purchased from third parties or conducted
by employers themselves. Purchased surveys often fail due to their
inability to be used for widely varying job offers, but if properly
conducted in accordance with the regulations, employer-conducted
surveys may be successfully.
Employers may decide to begin recruitment before or after
obtaining prevailing wage determinations, but in either case
employers should begin by analyzing the entire PERM Form instead of
expediting preparation of the prevailing wage form 9141. The latter
contemplates a more generalized wage determination which does not
necessarily take into consideration all the conditions and
requirements for specific job offers that must be set forth and
filed with detail on the PERM Form 9089.
Procedures for wage determination are subject to political
pressure from groups who seek to protect American wages or to
diminish the number of foreign workers in the domestic workforce.
in U.S. government to eliminate the use of the lowest wage (Level
I) in petitions for temporary work visas, thereby raising the
challenge to bring foreign labor to the US. Other changes have been
recently proposed to link the two forms more closely together. New
wage regulations are currently pending, and we have written about
this in recent articles published on this site.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.